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Pre-enforcement work

Introduction

When faced with breaches of equality legislation, the Commission, in its role as statutory regulator, has a wide range of tools available. The Commission will aim to choose an enforcement method which is relevant and proportionate to a particular breach.

As a first step, the Commission hopes to resolve issues of compliance with the Equality Act through informal action and cooperation. The Commission is keen to scope any possibility of agreeing informally to a schedule of remedial action without resorting to formal enforcement action. Escalation to legal enforcement will usually only occur when such informal action has failed to secure compliance

The Commission will usually only take formal enforcement action where attempts to encourage compliance have failed. The Commission will strive to promote compliance as the preferred option through pre-enforcement actions. Such actions may include:

  • Working with organisations to ensure that remedial or preventative action may be taken
  • Giving specific advice or guidance to an organisation.
  • Holding meetings with senior managers and other staff
  • Carrying out desk based reviews of information provided by organisations and providing feedback
  • Exchanging relevant information with other law enforcement bodies and regulators

As well as our general pre-enforcement work, we carry out pre-enforcement work in relation to two specific areas within our remit. These are discriminatory adverts and enquiries about disability and health at a pre-employment stage.

For the most part, all of our pre-enforcement work remains confidential and collaborative.

Examples of general pre-enforcement work

  • In Telford central train station a member of the train staff read out an announcement warning passengers of ’Pickpockets and Gypsies’ in the area. The Commission wrote to London Midland to find out what steps they had taken to investigate the incident, and what equality training their staff received. London Midland replied apologising for the announcement, confirming that they had investigated the matter thoroughly, that all staff received equality training and that the person involved had now left the company.
  • Women in Stamford Hill were told they are not allowed to drive their children to school. The strict ruling came from rabbis in an orthodox Jewish sect in Stamford Hill, north London which runs the school. Mothers were told if they did drive, then their children would be barred from the classroom as punishment, unless there are medical reasons for their mother to be behind the wheel of a car. The Commission wrote to the school involved advising them of their legal obligations. The Commission received a commitment from governors "that they will not exclude or refuse admission to any child or apply any other sanction on the basis of their mother driving".
  • A same sex couple was unable to book the holiday of their choice because the terms and conditions of the service did not allow applications from all-male or all-female groups under the age of 25. Although this policy was intended to deter stag and hen parties, the word 'group' was defined as including all-male or all-female couples. The Commission contacted the CEO of the company who agreed to immediately change the restrictions which apply to the holiday promotions his company is responsible for, and promised to change the booking system so that same sex couples are recognised as a family.
  • The Metropolitan Police had emailed various bodies and residents in the London Borough of Ealing warning about ‘the use of chalked symbols left outside burgled houses by Gypsy and Traveller burglars’. The Commission asked the Association of Chief Police Officers what evidence this assertion was based on. The Association of Chief Police Officers confirmed that there was ‘absolutely no evidence’ of a link to Gypsies and Travellers. A police intelligence group also confirmed this as ‘an urban myth’ ACPO have now circulated this information about the symbols across all police forces.
  • The Department for Energy and Climate Change (DECC) ‘Warm Home Scheme’ which was created to reduce electricity bills for poorest and most vulnerable excluded Gypsies and Travellers (G&Ts), who could not access the scheme as they were not named on the electricity account. The Commission wrote to DECC requesting a meeting between DECC, the Commission and representatives from the Traveller Movement. Following a constructive meeting with DECC, they are now reviewing the operation of the policy and are considering ways to include G&Ts and Park homes in the scheme, possibly by providing cash vouchers.

Examples of pre-enforcement work in relation to discriminatory adverts

  • A small food retail outlet had advertised for a man to work as an assistant. It transpired that they thought a man was better for the role as it was for night work. Following a discussion with the Commission they agreed to provide training for all staff with recruitment responsibility
  • An employer was advertising for a man to work for him. When the Commission contacted him, he said it was because they do house removals all over the country and to save costs they sleep in the bunk in the van and it would mean sharing with him. He has removed the advert and assured us that if the same job is advertised in the future he will explain the reason for the restriction in the advert.

Examples of pre-enforcement work in relation to enquiries about disability and health at a pre-employment stage

  • A small recruitment agency mostly recruiting for vacancies within the food preparation industry and for work within warehouses (often involving working with machinery and operating forklift trucks) was asking applicants wishing to register with the agency to complete a health questionnaire (before the applicant’s application had been processed and accepted). Many of the questions were generic in nature and related to applicants’ current and past health. The form also contained a declaration asking candidates to give consent for their medical information to be disclosed to potential clients for employment purposes. After engaging with the Agency about its obligations under Section 60 and taking into account relevant exceptions, it agreed to amend the timing of the health questionnaire so that it would be sent out to candidates following a conditional offer of employment/entry to the employment pool. It also agreed to restructure the questionnaire to meet the specific needs of the job being recruited for bearing in mind the intrinsic functions of the post and compliance with any other legislations i.e. health and safety and/or food hygiene legislation etc.
  • An engineering firm was asking pre-employment health questions on its standard job application form; these included questions such as whether the candidate was in good health, has suffered from any illness or major operation and to disclose any claims against a previous employer for injury. It also asked them to provide dates and reasons for all GP and hospital visits in the last 6 months of their employment. Furthermore, applicants were asked questions which could give rise to a discrimination claim, for example, the age of their children and spouse’s name. After highlighting their obligations under Section 60, and the fact that some of their questions relating to candidates’ personal details could give rise to a discrimination claim, firm removed all health questions from the form together with several questions from the personal details section i.e. name of spouse, age of children.

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Last updated: 11 Dec 2017